Land 9

Question 1

What is a freehold covenant?

Answer 1

A promise to do or not to do something related to freehold land. It is a third-party right that can in some way limit the use of land

Question 2

Who is the covenantor and who is the covenantee?

Answer 2

Covenantor: the person entering into the covenant (usually the buyer). Covenantee: the person having the benefit of the covenant (usually the seller).

Question 3

In the context of a freehold covenant, which land takes:* the burden* the benefit

Answer 3

Burden: The land over which the covenant has been imposedBenefit: The land which imposed the covenant

Question 4

What is a negative (restrictive) covenant?

Answer 4

An obligation imposed on land which is negative in nature e.g.:* Not to use the land for any offensive trade or business* Not to allow more than one dwelling to be built on a piece of land and * Not to be a nuisance or annoyance to neighbouring property owners.Note that it is the steps required to comply with the covenant that determine whether it is positive or restrictive, not the wording of the covenant.

Question 5

What is a positive covenant?

Answer 5

An obligation imposed on land which is positive in nature:* An obligation on a landowner to fence a section of boundary and to maintain it thereafter and * An obligation to contribute to the costs of repair of a shared private road. Note that it is the steps required to comply with the covenant that determine whether it is positive or restrictive, not the wording of the covenant.

Question 6

‘Not to allow the fence at the rear to fall into disrepair’. What type of covenant is this?

Answer 6

This looks like a restrictive covenant, as it starts with the words ‘not to’, but it requires a positive act to comply with it (that is, the payment of money to repair the fence) and so it is, in fact, a positive covenant.

Question 7

Is the original covenantor liable to the original covenantee on the covenant even after the sale of land by the person benefitting from the covenant, and why?

Answer 7

Yes, under privity of contract

Question 8

What determines whether a covenant is enforceable against successors in title to the original covenanting parties?

Answer 8

Whether the covenant is positive or restrictive* Need to consider the position at common law and in equity* Need to distinguish between enforcement of the benefit from enforcement of the burden

Question 9

What are the four conditions for the benefit of a restrictive covenant to be enforceable by the successors of title in law of the covenantee, i.e. the party who originally benefitted?

Answer 9

1. Covenant touches and concerns the land, i.e. benefits the land, not a personal right2. It was intended to pass with the legal estate held by the original covenantee even after sale3. The covenantee held the legal estate in the land to be benefitted at the time the covenant was made, and4. The assignee of the original covenantee now holds the legal estateEssentially a privity of contract argument to transfer a benefit to the land, which was intended to run with the legal estate, to the person who now owns the legal estate

Question 10

A is the freehold owner of Blackacre and an adjacent piece of land, Whiteacre. A sells his Whiteacre freehold to B. The documents include a promise that B will not use the land other than as a private dwelling. The covenant goes on to indicate that it shall bind B’s successors in title or those deriving title under him. If A subsequently sells the freehold estate of Blackacre, can the buyer enforce the covenant against B?

Answer 10

Yes, the buyer would be able to enforce the covenant against B. But note: The covenant would not be enforceable by someone not holding all of A’s estate, such as a tenant.

Question 11

Is the burden of a restrictive covenant enforceable in law against a successor in title of burdened land?

Answer 11

No, but it may be enforceable in equity provided certain conditions are met.

Question 12

What are the four requirements for the burden of a restrictive covenant to be enforceable in equity against a successor in title of burdened land?

Answer 12

1. The covenant is by nature negative2. The covenantee owned the land to be benefitted at the time the covenant was made3. Burden of the covenant was intended to run with the land, and4. General equitable principles and need for notice applies

Question 13

What is deemed notice for of a restrictive covenant to be enforceable in equity against a successor in title of burdened in (1) the unregistered system and (2) the registered system?

Answer 13

Unregistered: D(ii) land chargeRegistered: Notice on charges register of burdened land

Question 14

Although the benefit of a restrictive covenent is capable of passing at law, can it be enforced at law?

Answer 14

No, the buyer of benefitted land must enforce the restrictive covenant in equity either by:* Annexation (show the benefit of the covenant is intended to attach to the land (e.g. using the words “for the benefit of…”)* Express assignment of the benefit of the covenant* Under the rules relating to building schemes (a scheme of development had been set up when estate is built so covenant is obvious)

Question 15

Who do positive covenants generally only bind?

Answer 15

The original contracting parties

Question 16

Can positive covenants pass to successors in title in law or in equity?

Answer 16

No

Question 17

What are five ways of enforcing a positive convenant?

Answer 17

1. Grant a lease2. Setting up a commonhold scheme3. Chain of indemnity covenants4. Right of re-entry coupled with rentcharge5. Benefit and burden rule

Question 18

Why does a granting a lease allow a positive covenant to be enforced?

Answer 18

Because the burden of positive and negative leasehold covenants run with the land due to privity of estate

Question 19

How does a chain of indemnity covenant allow a positive covenant to be enforced?

Answer 19

The original covenantor and each successive successor in title obtain indemnity covenant from the next buyer, so the liability is continually offset and primarily enforceable (unreliable as there may be a break in the chain)

Question 20

A covenants with B to pay for the upkeep of a fence. A sells their property to C, requiring C to enter into an indemnity covenant with A. C stops paying. How can B enforce the obligation?

Answer 20

B can’t enforce the covenant against C so sues A instead. Because of the indemnity agreement, A can then sue C as C promised A that they would comply with the covenants. This is a chain of indemnity which allows each person to recover from the next in the chain.

Question 21

How are positive covenants enforced using a right of re-entry coupled with a rentcharge?

Answer 21

A rentcharge is an annual payment of money is charged on the land which can be enforced if the money is not paid. This right is made subject to the performance of a positive obligation and may be annexed to a rentcharge.

Question 22

What is required for the rule that a person cannot accept a benefit without also accepting the burden, and what is a consequence of them failing to uphold a positive convenant?

Answer 22

The benefit and the burden must be relevant to each other, e.g. benefit of using a road paired with benefit of helping fund its maintenance.Whilst the obligation to maintain is not enforceable against a successor, they can be denied use of the benefit.